IN THE HIGH COURT OF TUVALU 2022

CIVIL CASE NO.4/20

BETWEEN

ENELE SOPOAGA
FIRST PLAINTIFF

PENIVAO LONESI
SECOND PLAINTIFF

AND

SEMI VINE
FIRST DEFENDANT

SILIGA KOFE
SECOND DEFENDANT

Before 		Hon Judge   Sir John Muria

Hearing		16th March 2022

Mr T. Finikaso for Plaintiff
Ms F T Nelu for Defendant

J U D G E M E N T

Muria J:	On 10th January 2022, the Plaintiffs/Applicants filed a Motion to enforce judgment of this Court made on 22nd April 2021.  In addition the Plaintiffs seek damages, Court costs and legal fees incurred in the matter.  The damages claimed include:

		General damages 	-	 $50,000.00
		Court costs		- 	$200.00
		Legal Fees		-	$5,000.00
Any further orders that this Court may deem appropriate

2.	The Plaintiffs now wish to withdraw their Motion and seek to have the $800.00 ordered by the Court to be paid into Court on 22nd April 2021 be paid to them. Ms Nelu of Counsel for the Defendants did not object to the Motion being discontinued but seeks costs against the Plaintiffs for discontinuing their Motion.

3.	I have ordered that there would be no order as to costs and that each party to bear its own costs in so far as the discontinuance of the Plaintiff’s Motion is concerned.  In so far as the issue of the $800.00, which was paid into Court and confirmed by Ministry of Finance Treasury, I realised that I have not made any specific order in respect of that sum.  I feel therefore that in the interest of Justice that I recall the parties to specifically address the Court on the status of the $800.00 before finalising the order in this matter.

4.	The parties have been recalled and I now have the benefit of hearing Counsel on status of the $800.00, which was paid into Court pursuant to the order of the Court made on 22nd April 2021.  For the purpose of this judgment, I set out before the Orders of the Court made by the Acting Chief Justice on 22nd April 2021:

1.	I declare that the assumption by the Falekaupule of the power to try a statutory offence under its customary jurisdiction and the procedures followed and orders made were ultra vires its powers and contrary to law.

2.	Certiorari shall issue to bring the decision of the Falekaupule into this Court and it is hereby quashed.

3.	An order shall issue prohibiting the Falekaupule and Kaupule from enforcing or taking any further steps to enforce any penalty or further action in respect to any offences alleged to have been committed by the applicants in the Funafuti Conservation Area on 20th June 2020.

4.	The Kaupule shall take appropriate steps to bring this complaint against the applicants to the Senior Magistrates Court in accordant with the provisions of the Criminal Procedure code for charge and trial or committal for trial.

5.	The $800 paid to the Pule Kaupule as spot fines under bye-law 3 (Offences) (2) shall be paid by the firs respondent into the Senior Magistrates Court for safe keeping until this matter is completed and appropriate directions are made for its disposal.”

5.	Of the five Orders issued by the Court above, Orders Nos 2,3,4 and 5 are executory and as such they can be enforced, and Order No.1 is declaratory only and as such, it is not enforceable.  See Craig –v- HM Advocate (for the Government of the Unite States of America and Another) [2022] UKSC 6; Attorney General et al –v- Prosser et al (8th March 2007)  Court of Appeal of Belize, Civil Appeal No. 7 of 2006; Chief R.A Okoya & Ors –v- Santilli & Ors Supreme Court of Nigeria, SC 200/1989, Fort Street Tourism Village –v- The Attorney General & Ors (23/4/2008) Court of Appeal of Belize, Civil Appeal Nos. 4 & 6 of 2008.

6.	Evidently, the applicant’s Notice of Motion that has now been withdrawn has sought to enforce the orders of the Court made on 22nd April 2021 by claiming general damages for pain and anguish caused by defendants.  There is no doubt that the applicant’s application stems from the first order of the Court that declares the actions of the defendants as ultra vires and contrary to law.

7.	Unfortunately, the declaratory order (Order 1) cannot be enforced in the manner that the applicant has sought to do.  It is not an executory order.  It is only a declaratory Order declaring the existence of the legal relationship or status of the action of the defendants.  There can be no enforcement or claim made to Order No.1 in the Orders of the Court issued on 22nd April 2021.  As I stated earlier only Orders Nos. 2,3,4 and 5 are enforceable since they are executory in nature.

8.	I need not say anything further on the applicant’s Motion since it is withdrawn.  I feel I only need to clarify the legal status of the Motion.  However the declaratory order (Order No.1) can be the basis for a separate action taken by the applicant to vindicate his rights, which have been violated.  See Chief R A Okoya & Ors –v- Santilli & Ors (above). 

	The $800.00

9.	I now turn to the status of the $800.00 ordered to be paid into Court.  The money has been paid into Court and it is now in the Treasury.  Orders (4) and (5) of the Orders made by the Acting CJ on 22nd April 2021 are relevant to the status of the $800.00.

10.	Before making Orders (4) and (5), the Acting Chief Justice set out the basis for the two orders in paragraph 55 of the judgment as follows:

“55.  	This case arises from an allegation that the applicants broke the laws of the FCA.  The three Orders made above set aside the Falekaupule’s findings and orders.  However, the allegation that he applicants committed an offence must still be tried and determined by the courts under the correct statutory procedures and I, therefore, made the following further Orders.
		
4)  The Kaupule shall take appropriate steps to bring this complaint against the applicants to the Senior Magistrates Court in accordant with the provisions of the Criminal Procedure code for charge and trial or committal for trial.
				       
	5)  The $800 paid to the Pule Kaupule as spot fines under bye-law 3 (Offences) (2) shall be paid by the firs respondent into the Senior Magistrates Court for safe keeping until this matter is completed and appropriate directions are made for its disposal.”

11.	Since the defendants made allegations that the plaintiffs committed offences under the laws of the Funafuti Conservation Area (FCA), the allegations must be determined by the Court under the correct statutory procedure which is the criminal law procedure.  The $800 which the plaintiff paid to the Pule Kaupule was paid into Court for safe keeping until the case against the plaintiffs, including the criminal allegations, are finalised and directions for the disposal of the $800 are made by the Court.

12.	The status of the $800 is that it is paid into Court and now in the Treasury to await the outcome of the Criminal complaints made against the plaintiffs.  Thereafter the Court will make appropriate directions as to the disposal of the $800.  Consequently, it would not be right  to order the $800 to be paid over to the plaintiff at this stage.  The $800 shall remain in the Treasury until the criminal allegations made against the plaintiffs are dealt with and completed.

13.	At the hearing of this application, I enquired of Counsel as to the status of the criminal complaints made against the plaintiffs since it is now almost one (1) year since the Order of the Court made on 22nd April 2021.  Affidavit evidence has been filed by the defendants, which shows that the formal complaint was made to the police in a letter dated 19th May 2021 addressed to the Commissioner of Police.  The letter was copied to the Senior Crown Counsel (Prosecution) in the Office of the Attorney General.

14.	The Police acknowledged the defendants letter of complaints on 10th August 2021 in a letter from Superintendent Piliota Viliamu.  In his letter, Superintendent Viliamu expressed his hope that “by the end of this week we can have an idea on the number of witnesses.”  That was the last thing heard from those in-charge of prosecution.  It is not known if those “number of witnesses” have been interviewed by the police.  Up to today, no charges have been laid against the plaintiffs by the prosecution, despite the formal complaint lodged by the Kaupule in May 2021.

15.	The process of dealing with the criminal allegations against the plaintiffs is now in the hands of the State, which has all the resources at its disposal to ensure that those who are alleged to have broken the law and commit offences are dealt with speedily and justly.  The Kaupule had done its part in bringing the complaints to the police as directed by the Court.

16.	Understandably, the plaintiffs have raised concern about the delay in bringing this matter to a conclusion.  The case against them started on 10th July 2020 and was heard and determined by the Court on 22nd April 2021.  But for the lingering criminal allegations still hovering over their heads, the Orders of the Court made on 22nd April 2021 in particular Order (1), vindicated the plaintiffs’ constitutional rights to protection of the law.  It is therefore the duty of this Court to ensure that the right to protection of the law and attainment of justice apply to all parties before it equally.

17.	In order to ensure that justice is done to both the defendants whose complaints are in the hands of the State and the plaintiffs, this Court orders that unless the charges arising from the criminal allegations against the plaintiffs are brought before the Senior Magistrate/Court within 60 days from the date of this order, the criminal proceedings against the plaintiffs arising out of the said allegations shall be permanently stayed upon application by the plaintiffs.  The 60 days lapse on 30th May 2022. 

18.	It cannot be heard from the prosecution to say that the 60 days given is too short.  The prosecuting authorities, including the police had notice of the complaints from the Kaupule since 17th May 2021.  The 60 days now given is to be considered as a bonus time for the prosecution to perform its legal obligation under the law since by the 30th May 2022 it will be one (1) year 13 days since the complaints were lodged with the police.

19.	In the light of what I have stated above in this judgment and in the circumstances of this case, I give the following orders and directions:

1.	The Plaintiffs Motion is discontinued.
2.	The sum of $800.00 paid into Court and now in the Treasury shall remain in the Treasury, until the criminal complaints against the plaintiffs are disposed of or further order from the Court.

3.	It is hereby directed that charges (if any), arising out of the Kaupule’s criminal complaints be preferred, served on the plaintiffs and brought before the Senior Magistrate Court within 60 days from the date of this order.  Failing to comply with this direction, the plaintiffs shall have liberty to apply for a permanent stay of prosecution for any offence arising out of the complaints made against them by the Kaupule in relation to this case and for the release of the $800.00 to the plaintiff.

20.	Each party shall bear its own costs of this application.
	
	Dated on the 30th day of March 2022

Sir John Muria
Judge